People v. Nudo

TUTTLE, J.

The defendant was convicted after trial by jury in the county of Stanislaus, of the crime of assault by means of force likely to produce great bodily injury, a felony. He objected to the court of its own motion referring the matter to the probation officer, and was sentenced to one year in the county jail. This is an appeal from the judgment of conviction and from the order denying a new trial.

The information by which defendant was charged is as follows:

“Information for assault by means of force likely to produce great bodily injury, a felony. Louis Nudo is accused by the District Attorney for the said County of Stanislaus, State of California, by this information, of the crime of assault by means of force likely to produce great bodily injury,

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a felony, committed as follows: The said Louis Nudo, on or about the 25th day of January, A. D., nineteen hmidred and thirty-nine, at and in said County of Stanislaus, State of California, and prior to the filing of this information, assaulted Bill Koch by striking him and gouging his eye with a hard object and by beating him and breaking his ribs.”

Considering the evidence in the light most favorable to the People, we find the essential facts of the case to be as follows : William Koch, the party who was very severely beaten by the defendant, was an old man, 77 years of age. He was, and had been, for six' years, a night watchman at the Riverbank Cannery, in Stanislaus County. The defendant, a comparatively young man, had for many years held a similar job, but had been discharged by the cannery for illegally selling certain materials which, it was claimed, he had stolen from the cannery. The defendant claimed that this was a frame-up, and allegedly believed that Koch was one of the instigators thereof. Apparently, the defendant had been trying to find out more about this alleged frame-up, but Koch would not talk about it, and defendant wanted to be informed by Koch as to the identity of the others involved, so that he could “get even”. Some time thereafter, defendant was riding in an automobile along the highway, and he saw Koch walking up a slope toward the car. Defendant stopped his ear and he and a companion alighted. Koch did not see them alight, and he approached the car and asked if there was any trouble. He then started to walk away, when someone struck him with a blackjack and knocked him down. He saw defendant take the blackjack and heard him say, “I got you, you-, and I am going to kill you. ’ ’ Defendant then struck Koch again in the eye, and he was rendered unconscious. In his fall he struck a guard-rail and broke several ribs. Koch bled profusely from his wound, and was taken to the hospital, where he remained nine days. Defendant testified that he had owned a blackjack, but that he had burned it two months prior to the assault. He also testified that he did not use a blackjack, but hit Koch with his fists.